Chilcott v Thermal Transfer Ltd

The Administrative Court cancelled the Prohibition Notice issued against Thermal Transfer Ltd (“TT”) and clarified the law on the approach to be taken by Employment Tribunals hearing appeals against Prohibition Notices.

TT was the main contractor on a construction site. It engaged a subcontractor to construct a steel platform. The subcontractor’s method statement stated that such work would be carried out from a Mobile Elevating Work Platform (“MEWP”). In breach of this, the subcontractor’s most senior employee on site climbed out of the MEWP on to the steel platform and fell from it to the ground. Mr Chilcott (an HSE Inspector) issued immediate Prohibition Notices against the subcontractor and TT.

Mr Chilcott appealed to the Administrative Court. Mr Justice Charles held that the approach to be adopted on an appeal against a Prohibition Notice was that provisionally proposed by Mr Justice Sullivan in Railtrack v Smallwood [2001] ICR 714. An Employment Tribunal should focus on the moment in time when the Prohibition Notice was issued and ask itself whether it would have issued a notice at that time.

Although the Employment Tribunal had in erred in law in its approach, the Prohibition Notice would nevertheless be cancelled on the grounds that no reasonable Employment Tribunal would conclude that the Prohibition Notice should be affirmed and modified rather than cancelled.

James Maxwell-Scott acted for Thermal Transfer Ltd in the Employment Tribunal and in the Administrative Court.